861 F.3d 324 (1st Cir. 2017), 16-1424, Penobscot Nation v. Mills

Docket Nº:16-1424, 16-1435, 16-1474, 16-1482
Citation:861 F.3d 324
Opinion Judge:LYNCH, Circuit Judge.
Party Name:PENOBSCOT NATION; UNITED STATES, on its own behalf, and for the benefit of the Penobscot Nation, Plaintiffs, Appellants, Cross-Appellees, v. JANET T. MILLS, Attorney General for the State of Maine; CHANDLER WOODCOCK, Commissioner for the Maine Department of Inland Fisheries and Wildlife; JOEL T. WILKINSON, Colonel for the Maine Warden Service; STAT
Attorney:Kaighn Smith, Jr., with whom James T. Kilbreth, III, David M. Kallin, Drummond Woodsum, and Mark A. Chavaree were on brief, for appellant Penobscot Nation. Mary Gabrielle Sprague, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, with whom John C. Cruden, Assistant...
Judge Panel:Before Torruella, Selya, and Lynch, Circuit Judges. TORRUELLA, Circuit Judge (dissenting). TORRUELLA, Circuit Judge (dissenting).
Case Date:June 30, 2017
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
FREE EXCERPT

Page 324

861 F.3d 324 (1st Cir. 2017)

PENOBSCOT NATION; UNITED STATES, on its own behalf, and for the benefit of the Penobscot Nation, Plaintiffs, Appellants, Cross-Appellees,

v.

JANET T. MILLS, Attorney General for the State of Maine; CHANDLER WOODCOCK, Commissioner for the Maine Department of Inland Fisheries and Wildlife; JOEL T. WILKINSON, Colonel for the Maine Warden Service; STATE OF MAINE; TOWN OF HOWLAND; TRUE TEXTILES, INC.; GUILFORD-SANGERVILLE SANITARY DISTRICT; CITY OF BREWER; TOWN OF MILLINOCKET; KRUGER ENERGY (USA) INC.; VEAZIE SEWER DISTRICT; TOWN OF MATTAWAMKEAG; COVANTA MAINE LLC; LINCOLN SANITARY DISTRICT; TOWN OF EAST MILLINOCKET; TOWN OF LINCOLN; VERSO PAPER CORPORATION, Defendants, Appellees,

Cross-Appellants,

EXPERA OLD TOWN; TOWN OF BUCKSPORT; LINCOLN PAPER AND TISSUE LLC; GREAT NORTHERN PAPER COMPANY LLC, Defendants, Appellees,

TOWN OF ORONO, Defendant

Nos. 16-1424, 16-1435, 16-1474, 16-1482

United States Court of Appeals, First Circuit

June 30, 2017

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. George Z. Singal, U.S. District Judge.

Kaighn Smith, Jr., with whom James T. Kilbreth, III, David M. Kallin, Drummond Woodsum, and Mark A. Chavaree were on brief, for appellant Penobscot Nation.

Mary Gabrielle Sprague, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, with whom John C. Cruden, Assistant Attorney General, Bella Sewall Wolitz, Office of the Solicitor, U.S. Department of the Interior, Steven Miskinis, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, and Elizabeth Ann Peterson, Attorney, Environment and Natural Resources Division, U.S. Department of Justice, were on brief, for appellant United States.

Gerald D. Reid, Assistant Attorney General, Chief, Natural Resources Division, with whom Janet T. Mills, Attorney General, Kimberly L. Patwardhan, Assistant Attorney General, Susan P. Herman, Deputy Attorney General, Chief, Litigation Division, and Christopher C. Taub, Assistant Attorney General, Senior Litigation Counsel, were on brief, for state defendants appellees.

Catherine R. Connors, with whom Matthew D. Manahan and Pierce Atwood LLP were on brief, for state intervenors appellees.

Before Torruella, Selya, and Lynch, Circuit Judges. TORRUELLA, Circuit Judge (dissenting).

OPINION

LYNCH, Circuit Judge.

The Penobscot Nation (the " Nation" ) filed suit in federal court against the State of Maine and various state officials (the " State Defendants" ), claiming rights as to a 60-mile stretch of the Penobscot River, commonly known as the " Main Stem." The United States intervened in support of the Nation. Private interests, towns, and other political entities, whom we shall call the " State Intervenors," intervened in support of the State Defendants' position.

The district court, on cross-motions for summary judgment, made two rulings: (1) " [T]he Penobscot Indian Reservation as defined in [the Maine Implementing Act (" MIA" ), Me. Rev. Stat. Ann. tit. 30 (" 30 M.R.S.A." ),] § 6203(8) and [the Maine Indian Claims Settlement Act (" MICSA" )], 25 U.S.C. § 1722(i), includes the islands of the Main Stem, but not the waters of the Main Stem," Penobscot Nation v. Mills, 151 F.Supp.3d 181, 222 (D. Me. 2015); and (2) " [T]he sustenance fishing rights provided in . . . 30 M.R.S.A. § 6207(4) allows the Penobscot Nation to take fish for individual sustenance in the entirety of the Main Stem section of the Penobscot River," id. at 222-23. The court issued declaratory relief to that effect on both points. Id.

In these cross-appeals, we affirm the first ruling and hold that the plain text of the definition of " Penobscot Indian Reservation" in the MIA and the MICSA (together, the " Settlement Acts" ), includes the specified islands in the Main Stem, but not the Main Stem itself. As to the second ruling on sustenance fishing, we vacate and order dismissal. That claim is not ripe, and under these circumstances, the Nation lacks standing to pursue it.

Those interested in further details of this dispute will find them in the district court opinion. See Penobscot Nation, 151 F.Supp.3d at 185-212. Given that the plain text of the statutes resolves the first issue and that there is no Article III jurisdiction as to the second, we do not and may not consider that history. Instead, we get directly to the point on both issues.

I.

This litigation began shortly after the Maine Warden Service and the Maine Department of Inland Fisheries and Wildlife requested a legal opinion from Maine's then-Attorney General William Schneider " regarding the respective regulatory jurisdictions of the . . . Nation and the State of Maine . . . relating to hunting and fishing on the [M]ain [S]tem of the Penobscot River." Attorney General Schneider issued his opinion (the " Schneider Opinion" or " Opinion" ) on August 8, 2012. On the same day, Attorney General Schneider sent a copy of the Opinion to the Governor of the Nation and noted in a cover letter: " I also understand that there have been several incidents in recent years in which . . . Nation representatives have confronted state employees, including game wardens, as well as members of [the] public, on the River for the purpose of asserting jurisdiction over activities occurring on the River."

The Schneider Opinion states that " the . . . Nation may lawfully regulate hunting on, and restrict access to, the islands within the River from Medway to Old Town that comprise its Reservation, but may not regulate activities occurring on, nor restrict public access to, the River itself" and that " the State of Maine has exclusive regulatory jurisdiction over activities taking place on the River."

The Nation filed suit in federal court against the State Defendants on August 20, 2012. In its second amended complaint, the Nation sought a declaratory judgment that the Schneider Opinion misinterprets federal law -- namely, MICSA -- and that both the Nation's regulatory authority and its sustenance fishing rights extend to and include the Main Stem of the Penobscot River. The State Defendants answered the Nation's complaint and filed counterclaims. The State Defendants sought a declaratory judgment that, among other things, " [t]he waters and bed of the [M]ain [S]tem of the Penobscot River are not within the Penobscot Nation reservation." All parties agree that the State Defendants' declaratory judgment claim on this point is ripe.

The United States, through the Department of Justice, filed a motion to intervene on behalf of the Nation on August 16, 2013, and the district court granted the United States intervenor status on February 4, 2014.1 The State Intervenors filed their motion to intervene in support of the State Defendants on February 18, 2013, which the district court granted on June 18, 2013. The parties engaged in discovery and further procedural sparring, after which the Nation, the State Defendants, and the United States each moved for summary judgment, and the State Intervenors moved for judgment on the pleadings.

The positions of the Nation and the United States differed slightly. The Nation defined the term " Reservation" to include the entire Main Stem, bank-to-bank, and its submerged lands. The United States said that that was its preferred reading, but it offered as another possible reading that the " Reservation" reaches the " thread" or centerline of the River. This alternative reading would create " halos" around each of the Nation's islands, in which the Nation could engage in sustenance fishing.

After oral argument, the district court issued its opinion.2 The Nation and the United States then filed motions to amend the judgment, seeking to " clarify" that the Penobscot Indian Reservation includes submerged lands on each side of the Nation's islands to the thread of the Penobscot River, or alternatively " clarify" that the court had not decided the issue. The State Defendants opposed the motions, and the court summarily denied the motions.

These cross-appeals followed.

II.

We review orders granting summary judgment de novo. McGrath v. Tavares, 757 F.3d 20, 25 (1st Cir. 2014). The parties agreed before the district court that the record was " amenable to resolution" by summary judgment, and the court agreed, concluding that it could " disregard as immaterial many factual disputes appearing in the record." Penobscot Nation, 151 F.Supp.3d at 185 & n.4. All of the issues here are ones of law, which we review de novo. Franceschi v. United States VA, 514 F.3d 81, 84-85 (1st Cir. 2008).

A. Construction of 30 M.R.S.A. § 6203(8)

Section 6203(8) of the MIA, which sets out what " Penobscot Indian Reservation" " means" under the MIA, in turn controls what " Penobscot Indian Reservation" " means" for federal law...

To continue reading

FREE SIGN UP